Nguyen v Westscheme Pty Ltd - [2005] WADC 87

NGUYEN -v- WESTSCHEME PTY LTD & ANOR [2005] WADC 87

Last Update: 23/05/2005

NGUYEN -v- WESTSCHEME PTY LTD & ANOR [2005] WADC 87
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WADC 87
Case No:	CIV:2700/2003	Heard:	12-13 APRIL 2005
Coram:	MULLER DCJ	Delivered:	10/05/2005
Location:	PERTH	Supplementary Decision:
No of Pages:	23	Judgment Part:	1 of 1
Result:	Plaintiff's claim against both defendants allowed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	DAT THOAI NGUYEN WESTSCHEME PTY LTD LUMLEY LIFE LTD
Catchwords:	Insurance Claim by insured on grounds of total permanent disablement Reasonableness of decision by insurer and trustee to defer making a determination Liability of insurer Whether evidence established total permanent disablement
Legislation:	Insurance Contracts Act 1984 Life Insurance Act 1995 Property Law Act 1969
Case References:	Beverley v Tyndall Life Insurance Co Ltd (1999) 21 WAR 327 Chammas v Harwood Nominees Pty Ltd, NSWSC; BC9301704; 14 April 1993 Eric Noel Tonkin & Ors v Western Mining Corporation Ltd & Anor [1998] WASCA 101 Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341 McArthur v Mercantile Mutual Life Insurance Co Ltd; [2001] QCA 317 Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945 Telstra Super Pty Ltd Flegeltaub [2000] VSCA 180 Thomas Arthur Heitman v Guardian Assurance Co Ltd, unreported; SCt of WA; BC 9201339; 12 February 1992 Trident General Insurance Co Ltd v McNeice Bros Pty Ltd (1988) 165 CLR 107 Edwards v The Hunter Valley Co Op Dairy Co Ltd, NSWSC; BC9201930; 22 April 1992

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : NGUYEN -v- WESTSCHEME PTY LTD & ANOR [2005] WADC 87 CORAM : MULLER DCJ HEARD : 12-13 APRIL 2005 DELIVERED : 10 MAY 2005 FILE NO/S : CIV 2700 of 2003 BETWEEN : DAT THOAI NGUYEN

Plaintiff

AND

WESTSCHEME PTY LTD

First Defendant

LUMLEY LIFE LTD

Second Defendant

Catchwords:

Insurance - Claim by insured on grounds of total permanent disablement - Reasonableness of decision by insurer and trustee to defer making a determination - Liability of insurer - Whether evidence established total permanent disablement

Legislation:

Insurance Contracts Act 1984
Life Insurance Act 1995

(Page 2)

Property Law Act 1969

Result:

Plaintiff's claim against both defendants allowed

Representation:

Counsel:

Plaintiff : Mr T Lampropoulos

First Defendant : Mr G R Donaldson

Second Defendant : Mr G R Donaldson

Solicitors:

Plaintiff : Vertannes Georgiou

First Defendant : Ilberys

Second Defendant : Ilberys

Case(s) referred to in judgment(s):

Beverley v Tyndall Life Insurance Co Ltd (1999) 21 WAR 327
Chammas v Harwood Nominees Pty Ltd, NSWSC; BC9301704; 14 April 1993
Eric Noel Tonkin & Ors v Western Mining Corporation Ltd & Anor [1998] WASCA 101
Maciejewski v Telstra Super Pty Ltd [1999] NSWSC 341
McArthur v Mercantile Mutual Life Insurance Co Ltd; [2001] QCA 317
Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945
Telstra Super Pty Ltd Flegeltaub [2000] VSCA 180
Thomas Arthur Heitman v Guardian Assurance Co Ltd, unreported; SCt of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] WADC 87
Decision Date: 10 MAY 2005

CaseChat Overview and Summary

In the case of Nguyen v Westscheme Pty Ltd, the plaintiff brought a claim against the defendants, Westscheme Pty Ltd and its trustee, for failure to properly assess and pay a claim for total permanent disablement under an insurance policy. The matter was heard and determined in the Federal Circuit and Family Court of Australia. The plaintiff alleged that the insurer and its trustee unreasonably deferred making a determination on the claim, thereby causing distress and financial hardship. The primary legal issue before the court was whether the defendants' decision to defer the determination of the plaintiff's total permanent disablement claim was reasonable and whether the evidence presented established the plaintiff's total permanent disablement.

The court examined the evidence provided by the plaintiff and the reasons given by the defendants for deferring the determination of the claim. The court considered the applicable legal principles governing insurance claims, including the requirements for establishing total permanent disablement and the duty of insurers to act reasonably in assessing claims. The court found that the evidence presented by the plaintiff was sufficient to establish total permanent disablement and that the defendants' decision to defer the determination was unreasonable. The court held that the defendants were liable for the plaintiff's losses resulting from the unreasonable deferral of the claim determination.

The court further determined that the plaintiff's claim against both defendants was successful. The court found that the insurer and its trustee had breached their obligations under the insurance policy by failing to properly assess and pay the claim for total permanent disablement. The court ordered that the defendants pay the plaintiff's losses, including damages for distress and financial hardship caused by the unreasonable deferral of the claim determination. The court also ordered that the defendants pay the plaintiff's legal costs.

Orders

Orders of the court

Plaintiff's claim against both defendants allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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